VOLUME 5: SERVICE LEVEL AGREEMENT - Western …...licence before the Commencement Date, includes any...

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Initials of the authorised representative of the bidder ___________________________

Initials of witness 1________________ Initials of witness 2________________

VOLUME 5: SERVICE LEVEL AGREEMENT

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SERVICE LEVEL AGREEMENT

PROVISIONING OF LEARNER TRANSPORT FOR THE WESTERN CAPE EDUCATION

DEPARTMENT

entered into by and between

THE WESTERN CAPE GOVERNMENT VIA THE WESTERN CAPE EDUCATION DEPARTMENT

(duly authorised thereto and represented herein by [insert name and surname] in

[his/her] capacity as [insert designation] for the WCED)

(“WCED”)

and

SERVICE PROVIDER

[insert description]

(“Service Provider”)

(collectively hereinafter referred to as the “Parties”)

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INDEX

LIST OF ANNEXURES

Annexure A: General Conditions of Contract

Annexure B: Service Level Schedule

Annexure C: Schedule of Authorised Vehicles

Annexure D: Pricing Schedule

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INTRODUCTION

A. The WCED requires the provisioning of Learner transport services for a period of 7 (seven)

years (Please note that the intended seven year contract period is still under review and

will be finalised at a later date) for [insert the number of learners] Authorised Learners on

Route [insert route/s number/s] with the following pick up and drop off points [populate

the table with the pick-up and drop off points] –

B. The WCED has appointed the Service Provider under Bid Number: B/WCED [insert].

C. The Service Provider has agreed to accept the appointment on the terms and conditions

as contained in this Agreement.

WHEREBY THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION

1.1. In this Agreement unless the context indicates a contrary intention a word or expression

which denotes −

1.1.1. any gender shall include the other genders;

1.1.2. a natural person shall include juristic persons and vice versa; and

1.1.3. the singular shall include the plural and vice versa.

1.2. The terms and conditions contained in the General Conditions of Contract (GCC),

incorporated herein, and annexed hereto as Annexure “A”, form part of the Agreement

between the Parties.

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1.3. In the event of any inconsistency between the provisions of parts of the Agreement

and/or the bid documentation, the following order will prevail –

1.3.1. The Agreement, excluding the annexures, will prevail over the annexures to the

Agreement;

1.3.2. The Special Conditions of Contract will prevail over the GCC;

1.3.3. The GCC will prevail over the other annexures to the Agreement;

1.3.4. The bid specifications; and

1.3.5. The bid proposal of the Service Provider to the extent it does not conflict with the

bid specifications.

1.4. If any provision in a definition is a substantive provision conferring rights or imposing

obligations on any Party, notwithstanding that it is only in the definition clause, effect shall

be given to it as if it were a substantive provision in the body of this Agreement.

1.5. The cancellation or termination of this Agreement shall not affect the provisions of this

Agreement which of necessity must continue to have effect after such cancellation or

termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.6. The rule of construction that a contract shall be interpreted against the Party responsible

for the drafting or preparation of it shall not apply to this Agreement.

1.7. Words and expressions defined in any clause shall, for the purpose of that clause, bear the

meaning assigned to such words and expressions in that clause.

1.8. In this Agreement, unless the context indicates a contrary intention, the following words

and expressions bear the meanings assigned to them and cognate expressions bear

corresponding meaning −

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1.8.1. “Adult Supervisor” means an adult person of 21 (twenty one) years or older who

remains on a Vehicle during the conveyance of pre-primary and primary school

Learners and who is to ensure the safety of such Learners;

1.8.2. “Agreement” means this Service Level Agreement, which also constitutes special

conditions of contract as contemplated in the GCC, and which comprises of –

1.8.2.1. the Special Conditions of Contract;

1.8.2.2. Bid Response which is incorporated herein by reference (to the extent

that the Bid Response does not conflict with the Specifications and in

which case the provisions of the Specifications shall prevail);

1.8.2.3. the Specifications;

1.8.2.4. the GCC; and

1.8.2.5. any other annexures annexed hereto;

1.8.3. “Applicable Law” means South African law and any of the following, from time to

time, to the extent that it applies to a Party, or the Services –

1.8.3.1. Any South African statute, regulation, policy, by-law, directive, notice or

subordinate legislation;

1.8.3.2. the common law;

1.8.3.3. any binding court order, judgment or decree;

1.8.3.4. any applicable South African industry code, policy or standard

enforceable by-law; or

1.8.3.5. any applicable direction, policy or order that is given by a South African

regulator having the force of law;

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1.8.4. “Authorised Learner” means those Learners authorised by the WCED to make use

of the Services on the Routes and are listed on the Register of Authorised

Learners;

1.8.5. “Authorised Stop” means a pick-up or drop-off point authorised by the WCED in

the Bid Documents;

1.8.6. “BBBEE” means broad-based black economic empowerment as contemplated

in the Board-Based Black Economic Empowerment Act 53 of 2003;

1.8.7. “Bid Documents” means Volumes 1 to 6 of the Bid Documents which includes the

bid invitation, general contract conditions, Specifications, Special Conditions of

Contract, SLA and annexures;

1.8.8. “Bid Response” means the submitted documentation from the Service Provider in

response to the bid invitation contained in the Bid Documents;

1.8.9. “Business Day” means any day other than a Saturday, Sunday or statutory public

holiday in the Republic of South Africa;

1.8.10. “Calendar Day” means any day of the week and includes weekends and

statutory public holidays in the Republic of South Africa;

1.8.11. “Calendar Month” means the period of time that begins on the 1st (first) Calendar

Day of any given month and shall consist of the number of Calendar Days in such

month, ending on the last Calendar Day of the same month;

1.8.12. "Claim Form" means the prescribed forms and certificates which are to be

completed, signed and submitted by the Service Provider in support of its monthly

claim;

1.8.13. “Claim Month” means from the 16th (sixteenth) Calendar Day of each Calendar

Month or the first School Day thereafter to the 15th (fifteenth) Calendar Day of the

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next Calendar Month or the last School Day prior to the 15th (fifteenth) Calendar

Day, excluding weekends, public holidays and school holidays;

1.8.14. “Code of Conduct” means the document prepared by the Service Provider and

provided to the WCED on the Commencement Date, that sets out the manner in

which drivers are to act in respect of Learners and render the Services;

1.8.15. "Commencement Date" means the date on which the Services will commence

which is [insert date];

1.8.16. “District Office” means a regional office of the WCED where a Route is situated;

1.8.17. “Driver’s Licence” means a license issued to an individual to legally drive a

Vehicle as more fully set out in the NRTA;

1.8.18. "Emergency" means a situation which is beyond the control of the Service

Provider, and which includes strikes, stay-aways, riots, vis maior, and which makes

the provision of the Services or part thereof impossible;

1.8.19. “Head of Department” means the head of and accounting officer of the WCED;

1.8.20. “Head Office” means the central office of the WCED which is situated in Cape

Town;

1.8.21. “Initial Termination Date” means the date that falls on the last Calendar Day of

the last School Term in which the 7th (seventh) anniversary of the

Commencement Date falls;

1.8.22. "Learner" means a Learner as defined in SASA that have been approved by the

WCED to be transported on the Route and as more fully set out in the Bid

Documents;

1.8.23. “NLTA” means the National Land Transport Act 5 of 2009;

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1.8.24. “NRTA” means the National Road Traffic Act 93 of 1996;

1.8.25. "Operating Licence" means a licence required by section 50 of the NLTA and

granted and issued in accordance with the NLTA and its regulations which is

necessary to enable the Service Provider to provide the Services in terms of this

Agreement, and where the Service Provider is already in possession of such

licence before the Commencement Date, includes any renewal, amendment or

transfer of such licence necessary to enable him or her to provide the Services;

1.8.26. “PRE” means the Provincial Regulatory Entity or any other provincial regulatory

authority vested with the power to issue Operating Licenses;

1.8.27. “Principal” means an educator appointed or acting as the head of a School to

which the Service Provider provides Services;

1.8.28. “Professional Driving Permit” means a permit issued to certain classes of drivers as

more fully set out in the NRTA and its regulations;

1.8.29. “Register of Authorised Learners” means the register kept by a Principal in which

the details of Authorised Learners qualifying for and using the Learner transport

scheme are indicated;

1.8.30. “Revenue Kilometres” means kilometres actually operated on approved Routes

for which the Bidder is entitled to compensation in terms of this Agreement;

1.8.31. “Road Accident Fund” means the fund created in terms of the Road Accident

Fund Act 56 of 1996 for the payment of compensation in accordance as set out

in the Road Accident Fund Act for loss or damage wrongfully caused by the

driving of motor vehicles;

1.8.32. “Roadworthy Certificate” means a certificate issued in terms of section 42 of the

NRTA confirming that a Vehicle complies with various requirements and may be

driven on a road;

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1.8.33. "Route" means the Learner transport Route stretching from the first pick-up point

to the last drop off point on such Route and as more fully set out in the Bid

Documents and in the Preamble to this Agreement;

1.8.34. “SASA” means the South African Schools Act 84 of 1996;

1.8.35. “School” means a public school as defined in the South African Schools Act 84 of

1996 and which School is situated in the Western Cape Province;

1.8.36. “School Day” means a day on which public Schools are open for learning during

School Terms and excludes weekends and public holidays of the Republic of

South Africa;

1.8.37. “School Term” means a quarterly portion of the academic year in which Schools

hold classes;

1.8.38. “Service Level Schedule” means the document annexed hereto marked as

Annexure “B” which more fully sets out the details regarding the Services to be

provided by the Service Provider;

1.8.39. “Services” means the transportation of Learners along a Route by specified

Vehicles at specified times and frequencies and stopping at specified locations in

accordance with the Specifications, Special Conditions of Contract and the

Service Level Schedule;

1.8.40. "Special Conditions of Contract" means any amplification or amendment or

addition to or departure from the conditions of contract for learner transport

schemes contained in the Bid Documents;

1.8.41. “Specifications” means the Specifications as set out in Volume 4 of the Bid

Documents in which the Routes, distances, Services, fares, time tables,

performance criteria, stops and any additional related information are described;

1.8.42. “Substitute Service Provider” means the Substitute Service Provider as defined in

clause 5 of this Agreement;

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1.8.43. “Term” shall bear the meaning ascribed to such term in clause 4.1 of this

Agreement;

1.8.44. "Time Schedule" means a schedule approved by the Principal, indicating all

departure times from points of origin and intermediate points as well as arrival

times at destinations on each Route for School Days, subject to any variation

thereof in terms of clause 14;

1.8.45. "Vehicle" means a motor vehicle designed or adapted for the conveyance of not

less than 10 (ten) Learners (including the driver), by means of which the Service

Provider proposes to provide the Services and includes –

1.8.45.1. “bus” which means a bus as defined in the NRTA (designed or modified

to carry more than 35 (thirty five) persons including the driver) and

includes a double decker bus, standard bus, maxi-bus, bus-train and bi-

articulated bus;

1.8.45.2. "minibus" which means a motor vehicle designed or modified solely or

principally for conveying more than 9 (nine) but not more than 16

seated persons, including the driver;

1.8.45.3. "midibus" which means a motor vehicle designed or modified solely or

principally for conveying more than 16 (sixteen) but not more than 35

(thirty five) persons, including the driver, and for the purposes of the

NRTA is a type of sub-category of bus;

1.8.45.4. "standard bus" which meaning a bus with a capacity of not less than 58

(fifty eight) persons and not more than 70 (seventy) seated persons;

1.8.45.5. “maxi-bus” which means a bus with 3 (three) axles and a seating

capacity of between 71 (seventy one) and 90 (ninety) passengers,

including the driver;

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1.8.45.6. "bus-train" which means a bus-train as defined in the regulations to the

NRTA, which−

1.8.45.6.1. consists of two sections connected to form a unit;

1.8.45.6.2. can swivel in a horizontal plane at the connection

between such sections;

1.8.45.6.3. is designed or adapted solely or principally for the

conveyance of the driver and at least 100 (one hundred)

other persons; and

1.8.45.6.4. has a continuous passageway over the length thereof;

1.8.45.7. “bi-articulated bus-train” which means a bus which−

1.8.45.7.1. consists of three sections connected to form a unit;

1.8.45.7.2. can swivel in a horizontal plane at the connection

between such sections;

1.8.45.7.3. is designed or adapted solely or principally for the

conveyance of the driver and at least 116 (one hundred

and sixteen) other persons; and

1.8.45.7.4. has a continuous passageway over the length thereof;

1.8.45.8. Or any other Vehicle adapted according to the latest requirements of

the South African Bureau of Standards, the Standards Act 29 of 1993, the

NRTA and its regulations, or any other Applicable Law;

1.8.46. “Vehicle Licence” means the licencing and registration document issued to the

owner of a Vehicle as more fully set out in the NRTA, relevant provincial laws and

regulations and municipal by-laws;

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1.8.47. “VAT” means Value Added Tax levied in terms of the Value-Added Tax Act 89 of

1991; and

1.8.48. “WCED” means the Western Cape Education Department which includes the

Head Office, District Office, Principal and public ordinary schools.

1.9. Any references in the GCC to the terms “Supplier” and “Purchaser” shall be references to

the terms “Service Provider” and “WCED” respectively in this Agreement.

2. APPOINTMENT

2.1. The WCED hereby appoints the Service Provider for purposes of rendering the Services to

the WCED with effect from the Commencement Date.

2.2. The Service Provider hereby accepts the appointment with effect from the

Commencement Date and agrees to render the Services to the WCED on the terms and

conditions set out herein.

2.3. The awarding of this bid and the conclusion of this Agreement are based on the

information provided by the Service Provider in its bid. The Service Provider shall maintain

its status in respect of its BBBEE compliancy and tax matters for the duration of this

Agreement. Should any deviation or changes occur, the Service Provider shall advise the

Head Office (Directorate: Procurement Management) accordingly. Material deviations

may result in the WCED having to apply remedial action, suspending or terminating this

Agreement. If any material deviations occur as a result of a change in legislation, the

Service Provider shall be afforded a reasonable amount of time to comply with the

legislative change. The Service Provider shall for the duration of this Agreement be in

possession of a valid tax clearance certificate.

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3. RELATIONSHIP OF THE PARTIES

3.1. The Service Provider, in furnishing the Services hereunder, is acting as an independent

contractor. Neither Party is an agent of the other or has any authority to represent the

other as to any matters, except as expressly authorised in this Agreement.

3.2. Nothing contained in this Agreement shall be construed as creating a company, close

corporation, joint venture, partnership or association of any kind, between any of the

Parties; nor is anything contained in this Agreement to be construed as creating or

requiring any continuing relationship or commitment on a Party’s or its affiliates’ behalf

with regard to the other Party and its affiliates other than as specifically set out herein.

3.3. Unless expressly authorised by this Agreement, neither of the Parties (nor their respective

agents) shall have the authority or right, nor shall any Party hold itself out as having the

authority or right, to assume, create or undertake any obligation of any kind whatsoever,

express or implied, on behalf of or in the name of the other Party.

4. DURATION

4.1. This Agreement shall commence on the Commencement Date, unless otherwise provided

for in this Agreement, remain in force for 7 (seven) years (Please note that the intended

seven year contract period is still under review and will be finalised at a later date) and

terminate on the Initial Termination Date or continue for such further period (if any) in the

event that the WCED elects to extend the Agreement in accordance with the extension

process set out in clause 4.4 below (the “Term”).

4.2. By the latest during the second last School Term prior to the Initial Termination Date, the

WCED will, in writing, notify the Service Provider of its intention to extend the Agreement in

accordance with the provisions set out in this Agreement.

4.3. If no written notice of extension is received by the Service Provider from the Head Office

(Directorate: Procurement Management) by the latest during the last School Term prior to

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the Initial Termination Date, then the Agreement shall ipso facto terminate on the Initial

Termination Date, unless the Parties agree otherwise in writing.

4.4. Extension process –

4.4.1. In the event of the Head Office (Directorate: Procurement Management)

notifying the Service Provider of its intention to extend this Agreement, it shall

simultaneously provide the Service Provider with details of its requirements

regarding the duration of the extended term.

4.4.2. This Agreement will be extended on the same terms and conditions contained

herein, unless agreed otherwise in writing by the Parties.

4.4.3. The Service Provider shall, upon receipt of the aforementioned notice of intention

to extend the Agreement, provide to the Head Office (Directorate: Procurement

Management), within 1 (one) Calendar Month thereafter, its proposal (pertaining

to pricing and any relevant terms and conditions) for extension of the

Agreement, which shall be on terms and conditions no less favourable to the

WCED than the terms and conditions contained herein.

4.4.4. The Parties shall negotiate in good faith to reach agreement of the extension

terms and conditions. In the event that the Parties fail to reach agreement by the

beginning of the Calendar Month prior to the Initial Termination Date, then this

Agreement shall, ipso facto, terminate on the Initial Termination Date.

4.4.5. Any extension shall be subject to the relevant approval prescripts by the Head of

Department.

5. SUBSTITUTE SERVICE PROVIDER

5.1. The written consent of the Head Office (Directorate: Procurement Management) shall be

required before the Service Provider may appoint any Substitute Service Provider.

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5.2. In the event of an industrial dispute or staff stay-away, or any other situation affecting the

Service Provider and its ability to provide the Services, the Service Provider shall be

responsible for taking all reasonable steps to render the Services by means of the use of a

Substitute Service Provider. If due to an Emergency there is no time to obtain prior written

approval from the WCED before the appointment of the Substitute Service Provider, the

Service Provider must inform the WCED of the particulars of such Substitute Service

Provider and then obtain the written approval of the Head Office (Directorate:

Procurement Management) within 3 (three) Business Days of the appointment of the

Substitute Service Provider.

5.3. The appointment of a Substitute Service Provider under this clause shall not be valid for

more than ninety (90) Calendar Days. The Head Office (Directorate: Procurement

Management) shall nevertheless only deal with and issue instructions to the Service

Provider who shall bear full responsibility for the provision of the Services in accordance

with this Agreement. It shall at all times be the responsibility of the Service Provider to liaise

with the Substitute Service Provider.

5.4. When claims are submitted, proof of delivery, to the satisfaction of the WCED, covered by

the Substitute Service Provider must be submitted. The Service Provider will be paid in

accordance with this Agreement for any trips made by the Substitute Service Provider and

it will be the Service Provider’s responsibility to reimburse the Substitute Service Provider

fully.

5.5. If the Service Provider is unable for any reason to provide the Services in accordance with

the Time Schedule for any consecutive period of 48 (forty eight) hours and fails to arrange

for a Substitute Service Provider, the Service Provider shall immediately inform the District

Office to this effect, to enable the District Office to make alternative arrangements. Unless

the Service Provider can prove that it was prevented from operating due to

circumstances beyond its control, it shall be liable for all the associated extra costs, and

penalties in terms of this Agreement for the failure to render the Services. Circumstances

beyond the control of the Service Provider shall not include disputes, stay-aways or strikes

confined to the Service Provider only.

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6. CESSION TO THE SCHOOLS IN TERMS OF SASA

6.1. Section 21 of SASA authorises the Head Office, on application by a School, to allocate

certain functions to it which entails that a School can apply to the WCED to take over the

Learner transport functions of the WCED in respect of that specific School.

6.2. The WCED thus reserves the right to cede and delegate to a School its rights and

obligations in terms of this Agreement, in which case the School shall replace the WCED as

a Party to this Agreement. The WCED further undertakes in such cases to give the Service

Provider 3 (three) Calendar Months’ notice of such cession and delegation.

7. TERMINATION OF APPOINTMENT

7.1. Notwithstanding any other provision in this Agreement, the WCED shall be entitled to

terminate this Agreement forthwith by written notice to the Service Provider if the Service

Provider –

7.1.1. enters into insolvency;

7.1.2. commits a fraudulent or dishonest act;

7.1.3. is, through its own actions, prevented from performing its duties for a period

exceeding 5 (five) days;

7.1.4. is guilty of any conduct which is prejudicial to the WCED’s interest;

7.1.5. has a civil judgment entered against it;

7.1.6. renders a standard of service which is below the standards set out in the

Specifications and the annexures thereto and fails to remedy such standard of

service within 7 (seven) Calendar Days of receiving written notice informing it of

such breach;

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7.1.7. fails to provide a valid tax clearance certificate during the contract period if the

WCED requests it; and

7.1.8. due to a change during the contract period, qualifies for lower BBBEE status

points than its status points as at the conclusion of this Agreement.

7.2. If the WCED is of the opinion that –

7.2.1. the Service Provider made any intentional or negligent misrepresentation to it

whether at the time of the bid evaluation, in the completion of the Bid

Documents or in the execution of the Agreement;

7.2.2. the Service Provider, in relation to obtaining the bid giving rise to the this

Agreement with the WCED, or in relation to the execution of this Agreement, has

or has caused to be promised, offered or given to an official, employee or any

other person any bribe, commission, gift, loan, advantage or any other

consideration whatsoever;

7.2.3. the Service Provider or any entity or person with whom the Service Provider is

actively associated with or, where the Service Provider is a company or

partnership, any manager, director or any person who wholly or partly exercises

or may exercise control over such a company or partnership, has acted

fraudulently or in bad faith or in any improper manner in the obtaining of or in the

execution of this Agreement; or

7.2.4. if the Service Provider in conducting its business, has contravened or, neglected

to comply with statutory requirements and as a result thereof, has been found

guilty of a criminal offence;

then the WCED may cancel this Agreement immediately without prejudice to any other

remedies it may have.

7.3. The following Service related incidents shall entitle the WCED to give notice of termination

of the Agreement forthwith if –

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7.3.1. Learners are dropped off late at School in the morning or picked up late after

School in the afternoon more than 3 (three) times in a Calendar Month or

otherwise as a regular occurrence;

7.3.2. Vehicles are overloaded and Learners are forced to stand in such overloaded

Vehicles;

7.3.3. the Service Provider, regardless of the reason, does not transport the Learners

without informing the Principal or making alternative arrangements;

7.3.4. the drivers should jeopardise the lives of the Learners in any manner including

through their conduct and/or their failure to apply the rules of the road;

7.3.5. the Service Provider uses the same Vehicle for providing the Services in terms of

this Agreement for also providing services in terms of another agreement;

7.3.6. the Vehicles used by the Service Provider do not have valid Vehicle Licences or

do not have Roadworthy Certificates;

7.3.7. If the WCED becomes aware that a driver does not have a valid Driver’s License

and Professional Driving Permit; and

7.3.8. If the Service Provider does not have its Vehicle tested for roadworthiness as

required by the NRTA or on request by the WCED.

7.4. Should the WCED determine that there is no longer a need for the Services, it reserves the

right to cancel this Agreement on 1 (one) School Term’s written notice to the Service

Provider. In the event that the Agreement is cancelled due to the Services no longer

being needed, the Service Provider must send an invoice to the WCED for all outstanding

amounts within 14 (fourteen) Calendar Days of the last School Day on which the Services

are rendered. This outstanding invoice will be paid by the WCED within 30 (thirty)

Calendar Days of the date thereof and in accordance with the usual procedures set out

in clause 12 below and once paid, the Service Provider will have no further claims against

the Department.

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8. REPRESENATIONS AND WARRANTIES

8.1. General representations and warranties –

8.1.1. The Service Provider represents and warrants that for the Term, the Services shall

conform to and operate in accordance with the Specifications and the Service

Level Schedule.

8.1.2. The Service Provider represents and warrants that it shall perform its obligations in

terms of this Agreement with promptness and in accordance with the standards

agreed upon in this Agreement. Without limiting the generality of the foregoing,

the Service Provider represents and warrants that it (and including, but not limited

to, its employees, agents, representatives and Substitute Service Providers) shall

have the necessary skills, experience, expertise, capacity and knowledge

reasonably required to perform the Services in accordance with the requirements

set out in this Agreement.

8.1.3. The Service Provider represents and warrants that it shall render the Services in

terms of this Agreement in a cost effective manner.

8.1.4. The Service Provider represents and warrants that it shall not do, nor omit to do

anything which would adversely impact on, or prejudice the Department’s

reputation in any way whatsoever.

8.1.5. In the light of the essential nature of the Services to the WCED, it is hereby

recorded and agreed that the Service Provider hereby irrevocably and

unconditionally undertakes and warrants in favour of the WCED that for so long

as the Term endures it shall not disrupt or interfere with the provision the Services.

8.2. Representations and warranties relating to the provision of the Services –

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8.2.1. The Service Provider warrants that the Vehicles listed in Annexure “C” annexed

hereto are in proper working order, roadworthy and available and will be used to

fulfil its obligations in terms of this Agreement.

8.2.2. The Service Provider warrants that the Vehicles listed in Annexure “C” annexed

hereto are to be used exclusively for rendering the Services during the agreed

pick-up and drop-off times in the mornings and afternoons on School Days and

shall not be used for the provision of other transport services during this time.

9. DUTIES OF THE WCED

9.1. The WCED hereby entrusts all such powers and duties to the Service Provider as are

required to enable the Service Provider to lawfully perform its duties effectively and

competently in terms of this Agreement.

9.2. It is the duty of the Head Office to monitor such Services and to ensure compliance with

this Agreement, the Service Level Schedule and the Specifications.

9.3. The WCED shall have the right to investigate any complaints, objections or representations

made by interested parties relating to the Services.

10. DUTIES OF THE SERVICE PROVIDER

10.1. The Service Provider shall perform the Services according to best practices and with the

requisite skills, expertise and knowledge.

10.2. The Service Provider shall ensure that all Services conform to all the Specifications and

render the Services strictly in accordance with the Service Level Schedule annexed hereto

as Annexure “B”.

10.3. The Service Provider shall make itself available to attend meetings called by the Head

Office, District Office and/or Principal and provide any feedback and/or information

requested during those meetings.

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10.4. The Service Provider shall provide reports to the WCED as requested by the WCED in

writing.

10.5. The Service Provider shall ensure that it provides the Principal with the Code of Conduct by

the Commencement Date, which may not exclude any of the provisions contained in the

pro forma Code of Conduct annexed to the Bid Documents.

11. INSURANCE

11.1. The Service Provider must take reasonable steps to ensure the safety of passengers and

property. The WCED shall not be liable for any loss or damages resulting from damage to

property or the death of or injury to any person which is caused by an intentional or

negligent act or omission of the Service Provider or its agents or employees.

11.2. The Service Provider shall obtain public liability insurance, which is to the satisfaction of the

WCED and in particular to cover claims that may lead to liability resulting from incidents

not covered by the Road Accident Fund, at its own cost commensurate with the risks

associated with rendering the Services.

11.3. The Service Provider warrants that it will maintain an insurance policy cover that satisfies

the WCED contemplated in clause 11.1 for the Term.

11.4. The Service Provider shall, at the Commencement Date and thereafter on a quarterly

basis, submit to the Head Office, proof of the validity and continuance of its insurance

policy.

11.5. Any non-compliance or the failure to make regular payments of premiums, resulting in the

cancellation or suspension of the insurance policy, will constitute a material breach of this

Agreement and any damage and/or loss suffered by the WCED as a result thereof shall be

borne by the Service Provider.

11.6. Clause 11.1 will survive the termination of this Agreement.

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12. INVOICING AND PAYMENTS

12.1. The WCED shall pay the Service Provider in accordance with the pricing schedule

attached hereto as Annexure “D”.

12.2. The costs referred to in 12.1 above are all-inclusive of all costs associated with rendering

the Services which includes VAT, all costs associated with the provision of divers, Adult

Supervisors and Vehicles, petrol and/or diesel costs, operational costs, administrative costs

and the costs associated with obtaining Operating Licences and complying with

Applicable Law.

12.3. The WCED shall pay the said amounts within 30 (thirty) Calendar Days of receipt of a

detailed and valid tax invoice, Claim Form and a copy of the Register of Authorised

Learners.

12.4. The following details must be reflected on the invoices contemplated in clause 12.3 –

12.4.1. The total amount payable with reference to the specific Services that have been

rendered during a particular Claim Month;

12.4.2. The invoice number; and

12.4.3. VAT payable.

12.5. The WCED will verify the correctness of a tax invoice, and notify the Service Provider of any

possible discrepancies within 10 (ten) Business Days of receipt of the tax invoice. If the

WCED identifies any material discrepancies, the tax invoice will be referred back to the

Service Provider, and the amount due will be payable within 30 (thirty) Calendar Days

from receipt of a corrected tax invoice, provided that the provisions of clauses 12.3 and

12.4 have been complied with. Undisputed amounts on an invoice shall be paid by the

WCED in accordance with clause 12.3.

12.6. No payment shall be made in respect of Services that have been rendered that do not

comply with the requirements in this Agreement and its annexures.

23



12.7. All payments in terms of this Agreement shall be made in South African Rand by way of an

electronic banking transfer into the bank account of the Service Provider (located in the

Republic of South Africa), details of which will be specified in the relevant invoice, quoting

the invoice number against which payment is to be made.

13. PENALTIES

13.1. The Services shall be monitored and penalties will be imposed as set out in this clause for

all offences listed.

13.2. The WCED will advise the Service Provider on a monthly basis of penalties to be imposed.

13.3. Revenue Kilometres shall in all cases only be paid for trips which have been operated.

13.4. No Vehicle shall leave the first point of departure before the time listed in the Time

Schedule or more than 15 (fifteen) minutes thereafter, failing which penalties will be

imposed as set out below.

13.5. The Service Provider will be expected to adhere strictly to the requirements of the

Specifications. Penalties will be imposed as follows –

Event Penalty

13.6.1 Where a trip has not been provided:

i. 1st Occurrence per Route per Claim Month;

ii. 2nd Occurrence per Route per Claim Month;

iii. 3rd Occurrence and more per Route per Claim Month.

R500.00 (five hundred Rand)

R700.00 (seven hundred

Rand)

R1000.00 (one thousand

Rand)

24



13.6.2 Late arrival and departure from schools:

i. Vehicle departs from first point of departure before

the time stated in the Time Schedule or after 15

minutes thereafter;

ii. Vehicle has not arrived at School within 30 (thirty)

minutes after School starting time;

iii. Vehicle arrives at School 30 (thirty) minutes or more

after School starting time;

iv. Vehicle has not arrived at School within 30 (thirty)

minutes of the School closing time.

R150.00 (one hundred and

fifty Rand)

R250.00 (two hundred and

fifty Rand)



13.6.3 Vehicle breakdowns:

i. Failure to provide a replacement Vehicle to transport

Learners to School in the morning;

ii. Failure to provide a replacement Vehicle in the

afternoon within 2 (two) hours of breakdown.

Should the Service Provider fail to provide a

replacement Vehicle such conduct will constitute a

serious breach. The WCED will not compensate the

Service Provider and reserves the right to institute

breach procedures if no alternative arrangements are

made to transport the Learners to and from School.

No remuneration for trip

No remuneration for trip

13.6.4 Failure to pick-up or drop-off Authorised Learners at

authorised points.


fifty Rand)

25



13.6.5 Vehicles in unsatisfactory condition:

i. Unauthorised Vehicle used;

ii. Use of a Vehicle without a valid Vehicle Licence or

Roadworthy Certificate;

iii. Use of a Vehicle with obvious defects (i.e. defective

door, missing window, loose or broken seat).

Where it is discovered that a Vehicle is used that does

not have a Vehicle Licence and/or Roadworthy

Certificate, the Service Provider must make

arrangements for a licensed and roadworthy

replacement Vehicle within 2 (two)hours, failing which

the WCED may arrange for alternative transport and

the Service Provider shall be held liable for the costs.


and fifty Rand)


and fifty Rand)


fifty Rand)

13.6.6 Deviating from Route:

Deviation from the Route unless the Service Provider

can show that the deviation was a response to an

unexpected situation such as weather or road incident.

The Service Provider will only be compensated for

approved Revenue Kilometres. Anticipated Route

deviations due to bad weather and road conditions

are excluded if the Service Provider informs the WCED

within 24 (twenty four) hours of such Route deviation.

The WCED will determine the validity and the distance

of the deviation.

R300.00 (three hundred

Rand)

26



13.6.7 Display of vehicle identification:

Failure to display Vehicle identification that Learners are

being transported in terms of paragraph 2.7 of the

Special Conditions of Contract.

R300.00 (three hundred

Rand)

13.6.8 Failing to provide the WCED with any information or

documentation applicable to the Contract.


13.6.9 Failing to present approved Vehicles for inspection or

testing as required by the WCED.


and fifty Rand)

13.6.10 Drivers and Adult Supervisors failing to comply with the

conditions set out in the Code of Conduct.


13.6.11 Failing to submit a Claim Form and invoice within three

(3) Business Days after the 15th (fifteenth) day of a Claim

Month.


fifty Rand)

13.6. Penalties will be imposed per Vehicle per day or per occurrence.

13.7. Notwithstanding the penalties above, the WCED reserves the right to place the Service

Provider in breach for the abovementioned transgressions in terms of clause 17 below.

14. ENTIRE AGREEMENT AND ASSIGNMENT

14.1. This Agreement replaces any other previous verbal or written agreement entered into

between the Parties.

14.2. This Agreement constitutes the entire agreement between the Parties and no

amendment, alteration, addition or variation of any right, term or condition of this

Agreement will be of any force or effect unless reduced to writing and signed by the

Parties to this Agreement.

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14.3. The Parties agree that there are no conditions, variations or representations, whether oral

or written and whether expressed or implied or otherwise, other than those contained in

this Agreement.

14.4. Notwithstanding any provision to the contrary in the Agreement, the primary responsibility

for supplying the Services vests with the Service Provider and it may not subcontract,

assign, cede, delegate or transfer, in whole or in part, any of its obligations to perform in

terms of this Agreement to any other person, without the prior written consent of the

WCED.

15. WAIVER

15.1. No waiver of any of the terms and conditions of this Agreement shall be binding unless

expressed in writing and signed by the Party giving the same, and any such waiver shall

be affected only in the specific instance and for the purpose given.

15.2. No failure or delay on the part of either Party in exercising any right, power or privilege

precludes any other or further exercising thereof or the exercising of any other right, power

or privilege.

15.3. No indulgence, leniency or extension of time which any Party (“the Grantor”) may grant or

show the other Party, shall in any way prejudice the Grantor or preclude the Grantor from

exercising any of its rights in terms of this Agreement.

16. SEVERABILITY

In the event that any of the terms of this Agreement are found to be invalid, unlawful or

unenforceable, such terms will be severable from the remaining terms, which will continue

to be valid and enforceable.

17. BREACH

17.1. Should a Party breach any of the terms and conditions of this Agreement and remain in

such breach for 7 (seven) Calendar Days after receipt of a written notice calling upon it to

28



remedy such breach, then the Party who served such notice shall be entitled, in addition

to any remedy which it may have in law, to cancel this Agreement.

17.2. In the case where the Service Provider remains in breach despite the notice as

contemplated in clause 17.1, the WCED may impose penalties as contemplated by

clause 22 of the GCC and, in particular, clause 13 above, or claim damages in lieu of

penalties.

17.3. Notwithstanding the provisions of clauses 17.1 and 17.2, the WCED may elect to appoint a

third party without notice to render part of the Services at the Service Provider’s expense if

the Service Provider fails to render any part of the Services for a period of more than 24

(twenty four) hours.

18. SETTLEMENT OF DISPUTES

18.1. Without detracting from a Party's right to institute action or motion proceedings in the High

Court or other Court of competent jurisdiction in respect of any dispute that may arise out

of or in connection with this Agreement, the parties may, by mutual consent, follow the

mediation and/or arbitration procedure as set out in clauses 18.2 and 18.3.

18.2. Mediation −

18.2.1. Subject to the provisions of clause 18.1, any dispute arising out of or in connection

with this agreement may be referred by the parties without legal representation

to a mediator.

18.2.2. The dispute shall be heard by the mediator at a place and time to be

determined by him or her in consultation with the parties.

18.2.3. The mediator shall be selected by agreement between the parties.

18.2.4. If an agreement cannot be reached upon a particular mediator within 3 (three)

Business Days after the Parties have agreed to refer the matter to mediation, then

29



the President of the Cape Law Society shall nominate the mediator within 7

(seven) Business Days after the Parties have failed to agree.

18.2.5. The mediator shall at his or her sole discretion determine whether the reference to

him or her shall be made in the form of written or verbal representations, provided

that in making this determination he or she shall consult with the Parties and may

be guided by their common reasonable desire of the form in which the said

representations are to be made.

18.2.6. The Parties shall have 7 (seven) Business Days within which to finalise their

representations. The mediator shall within 7 (seven) Business Days of the receipt

of the representations express in writing an opinion on the matter and furnish the

Parties each with a copy thereof by hand or by registered post.

18.2.7. The opinion so expressed by the mediator shall be final and binding upon the

Parties unless a Party is unwilling to accept the opinion expressed by the

Mediator. In such event, the aggrieved Party may institute legal proceedings in a

court of competent jurisdiction, unless the Parties agree to refer the dispute to

arbitration in accordance with clause 18.3. The expressed opinion of the

mediator shall not prejudice the rights of either Party in any manner whatsoever in

the event of legal proceedings or arbitration, as the case may be.

18.2.8. The cost of mediation shall be determined by the mediator.

18.2.9. Liability for such cost shall be apportioned by the mediator and shall be due and

payable to the Mediator on presentation of his or her written account.

18.3. Arbitration −

18.3.1. Subject to the provisions of clause 18.1, the Parties may agree to refer any dispute

arising out of or in connection with this Agreement, to arbitration.

30



18.3.2. Arbitration shall be held in Cape Town informally and otherwise in accordance

with the provisions of the Arbitration Act 42 of 1965, it being intended that, if

possible, it shall be held and concluded within 10 (ten) Business Days.

18.3.3. Save as otherwise specifically provided herein, the arbitrator shall be if the matter

in dispute is –

18.3.3.1. primarily a legal matter, a practising Senior Advocate of the Cape Bar;

18.3.3.2. any other matter, an independent and suitably qualified person as

may be agreed upon between the Parties to the dispute.

18.3.4. If agreement cannot be reached on whether the question in dispute falls under

18.3.3.1 or 18.3.3.2 and/or upon a particular arbitrator within 3 (three) Business

Days after the Parties have agreed to refer the dispute to arbitration, then the

Chairperson for the time being of the Cape Bar Council shall −

a) determine whether the question in dispute falls under 18.3.3.1 or 18.3.3.2;

and/or

b) nominate the arbitrator within 7 (seven) Business Days after the Parties

have failed to agree.

18.3.5. The arbitrator shall give his or her decision within 5 (five) Business Days after the

completion of the arbitration. The arbitrator may determine that the costs of the

arbitration are to be paid either by one or the other or by both of the Parties.

18.3.6. The decision of the arbitrator shall be final and binding and may be made an

order of the Western Cape High Court, Cape Town, upon the application by any

Party to the arbitration.

18.4. Notwithstanding the provisions contained in clause 27 of the GCC, disputes between the

Parties shall be governed exclusively by, and settled in terms of, clauses 18.1 to 18.3 of this

Agreement.

31



19. CONFIDENTIALITY

19.1. Save as otherwise provided in this Agreement, the Parties shall treat as strictly secret and

confidential the existence and nature of all discussions and negotiations relating to the

subject matter of this Agreement, it being agreed and undertaken by the Parties that no

disclosure of whatsoever nature or kind of the content of this Agreement shall be made to

any person without the prior written consent of the other Party.

19.2. The Parties shall not during the currency of this Agreement or at any time thereafter, utilise

or cause to be utilised, and/or directly or indirectly publish or cause to be published or

otherwise disclose or cause to be disclosed to any third party, any personal information of

any person obtained during the course of rendering the Services, unless compelled by law

to disclose such information.

20. INDEMNITY

20.1. The Service Provider specifically indemnifies the WCED against all and any claims,

including claims for consequential damages, which might arise from personal injury,

death, loss or damage to property or person, or any other claim of whatsoever nature,

arising from negligence, gross negligence or any other cause howsoever, which any

person may have or institute against the WCED and where the cause of such claim can

be directly or indirectly attributed to the rendering of the Services by the Service Provider.

20.2. Clause 20.1 shall survive the termination of this Agreement.

21. NOTICES AND DOMICILIUM

21.1. The Parties choose as their respective domicilium citandi et executandi for the purposes of

legal proceedings, the transmission of invoices and credit notes in terms of this Agreement,

the following addresses:

The WCED:

The Head of the WCED

Grand Central Building

Plein Street

32



Cape Town

8000

The Service Provider

[Designation]

[Address]

21.2. All notices referred to in clause 21.1 above that are to be given in terms of this Agreement

shall be given in writing and be delivered or sent by prepaid registered post to the Party’s

chosen domicilium citandi et executandi.

21.3. If delivered by hand, a notice shall be presumed to have been received on the date of

delivery, or, if sent by prepaid registered post, be presumed to have been received 7

(seven) Business Days after the date of posting.

21.4. A written notice or communication actually received by a Party shall be deemed to be

adequate notice notwithstanding that it was not delivered or sent to its chosen domicilium

address. If transmitted by electronic mail message be deemed to have been received by

the addressee on the expiration of 24 (twenty four) hours after transmission.

22. FORCE MAJEURE

22.1. Neither of the Parties shall be liable for a failure to perform any of its obligations insofar as it

proves −

22.1.1. that the failure was due to an impediment beyond its control;

22.1.2. that it could not reasonably be expected to have taken the impediment and its

effects upon the Party’s ability to perform into account at the time of the

conclusion of this Agreement; and

22.1.3. that it could not reasonably have avoided or overcome the impediment or its

effects.

33



22.2. An impediment, as aforesaid, may result from events such as the following (this list is not

exhaustive) −

22.2.1. war, whether declared or not, civil war, civil violence, riots and revolutions, acts of

sabotage;

22.2.2. natural disasters such as violent storms, cyclones, earthquakes, tidal waves,

floods, destruction by lightning;

22.2.3. explosions, fires, destruction of machines, of factories and of any kind of

installations;

22.2.4. acts of authority, whether lawful or unlawful, part from acts from which the party

seeking relief has assumed the risk by virtue of any other provisions of this

Agreement.

22.3. Relief from liability for non-performance by reason of the provisions of this clause shall

commence on the date upon which the Party seeking relief gives notice of the

impediment relied upon, and shall terminate upon the date upon which such impediment

ceases to exist; provided that if such impediment continues for a period of more than 60

(sixty) Business Days, either of the Parties shall be entitled to terminate this Agreement.

SIGNED ON BEHALF OF THE WCED AT …………………………………… ON THIS THE ………………..

DAY OF ………………………………………… 2017

IN THE PRESENCE OF THE UNDERSIGNED WITNESSES:-

1. ……………………………….(witness)

2. ……………………………….(witness) .…………………………………………..

[insert name and surname] on behalf of

the WCED being duly authorised

34



SIGNED ON BEHALF OF THE SERVICE PROVIDER AT …….…………………………………… ON THIS THE

……………….. DAY OF ………………………………………… 2017

IN THE PRESENCE OF THE UNDERSIGNED WITNESSES:-

1. ……………………………….(witness)

2. ……………………………….(witness) …………………………………………..

[insert name and surname] on behalf of

the Service Provider being duly

authorised

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